PARIS v. ASTRUE
Filing
12
MEMORANDUM OPINION to the Order granting in part and denying in part Plaintiff's Motion for Judgment of Reversal and denying Defendant's Motion of Judgment Affirmance. Signed by Judge Gladys Kessler on 8/29/12. (CL, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
DIESA PARIS,
Plaintiff,
:
:
:
:
: Civil Action 11-2163 (GK)
:
:
:
:
:
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
__________________________________
MEMORANDUM OPINION
Plaintiff, Diesa Paris, brings this action seeking judicial
review of a final decision of the Commissioner of the Social
Security
Administration
(“Commissioner”)
pursuant
to
Section
205(g) of the Social Security Act, 42 U.S.C. § 405(g), denying
her claims for Disability Insurance Benefits (“DIB”) pursuant to
Title II of the Social Security Act, 42 U.S.C. §§ 42 et seq.
This matter is before the Court on Plaintiff’s Motion for
Judgment of Reversal [Dkt. No. 8] and Defendant’s Motion for
Judgment of Affirmance [Dkt. No. 10].
parties’
entire
cross-motions,
record
herein,
the
and
Upon consideration of the
administrative
for
the
record,
reasons
stated
and
the
below,
Plaintiff’s Motion for Judgment of Reversal is hereby granted in
part and denied in part, and Defendant’s Motion for Judgment of
Affirmance is hereby denied.
-1-
I.
BACKGROUND
Plaintiff
Washington,
DC.
is
a
fifty-year-old
Administrative
Record
woman
who
(“AR”)
at
resides
37,
in
102-105
[Dkt. No. 3]. She has a high-school education and no specialized
training. AR at 38, 136. Plaintiff last worked full time on
January 31, 2007 as a retail manager. See AR at 102, 132. She
has been diagnosed with systemic lupus erythematosus, psoriatic
arthritis, and major depressive order. AR at 15.
As
a
result
of
these
disorders,
Plaintiff
filed
an
application for Disability Insurance Benefits pursuant to Title
II of the Social Security Act on February 25, 2008. Plaintiff’s
claim was denied initially and upon reconsideration. On April 1,
2010,
a
hearing
regarding
Plaintiff’s
alleged
disability
was
held in front of an Administrative Law Judge (“ALJ”). On June
11,
2010,
the
ALJ
denied
Plaintiff’s
request.
Thereafter,
Plaintiff requested the Appeals Council to review the decision
of the ALJ. On October 3, 2011, the Appeals Council affirmed the
decision of the ALJ.
A.
Disability Determination Process
In order to qualify for disability insurance benefits, an
individual must prove that she has a disability that renders her
unable “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment” for
a period of “not less than 12 months.” 42 U.S.C. §§ 423(a)(1) &
-2-
(d)(1)(A). The claimant must support her claim of impairment
with
“[o]bjective
medically
medical
acceptable
techniques.”
42
evidence”
clinical
U.S.C.
that
is
“established
laboratory
423(d)(5)(A).
§
or
In
by
diagnostic
addition,
the
impairment must be severe enough to prevent the claimant from
doing
her
previous
education,
and
work
work
and
work
experience
commensurate
that
exists
with
in
her
the
age,
national
economy. 42 U.S.C. § 423(d)(2)(A).
The Social Security Administration (“SSA”) uses a five-step
evaluation process to determine whether a claimant is disabled,
thus
qualifying
for
benefits.
20
C.F.R.
§
404.1520(a)(1).
A
clear determination of disability or non-disability at any step
is definitive, and the process ends at that step. 20 C.F.R. §
404.1520(a)(4). In the first step, a claimant is disqualified if
she is currently engaged in “substantial gainful activity.” 20
C.F.R. § 404.1520(a)(4)(i). In the second step, a claimant is
disqualified
if
she
does
not
have
a
“severe
medically
determinable physical or mental impairment” that is proven “by
medically
acceptable
clinical
and
laboratory
diagnostic
techniques.” 20 C.F.R. §§ 404.1508 & 404.1520(a)(4)(ii). In the
third
step,
a
claimant
qualifies
for
benefits
if
her
impairment(s) meets or equals an impairment listed in 20 C.F.R.
§ 404, subpart P, appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii).
Between
the
third
and
fourth
step,
-3-
the
SSA
uses
the
entire
record
to
make
a
determination
of
the
claimant's
residual
functional capacity (“RFC”), which is “the most [the claimant]
can
still
do
despite
[the]
limitations”
created
by
the
impairment. 20 C.F.R. §§ 404.1520(a)(4) & 404.1545(a)(1). In the
fourth step, a claimant is disqualified if her RFC shows that
she is still able to do her past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv).
In
the
fifth
step,
a
claimant
is
disqualified if her RFC shows that she is capable of adapting to
“other work that exists in the national economy.” 20 C.F.R. §§
404.1520(a)(4)(v)
&
404.1545(a)(5)(ii).
If
the
claim
survives
these five steps, then the claimant is determined disabled and
qualifies for benefits. 20 C.F.R. § 404.1520(a)(4)(v).
B.
The ALJ’s Ruling
The ALJ applied the sequential five-step process described,
supra, and determined that, while Plaintiff suffered from severe
impairments
including
depression,
psoriatic
arthritis,
and
systemic lupus erythematosus, she was not disabled within the
meaning of the Social Security Act. The issues in dispute in
this
case
arise
in
steps
four
and
five
of
the
assessment
process.
At step four of the assessment, the ALJ determined that
Plaintiff had the RFC to perform a range of sedentary work so
-4-
long
as
she
had
a
“sit/stand
option” 1
and
was
limited
to
unskilled tasks involving no more than occasional contact with
the public. AR at 24. At step five of the evaluation process,
the ALJ relied on a vocational expert’s testimony to determine
that Plaintiff “is capable of making a successful adjustment to
[]
work
that
exists
in
significant
numbers
in
the
national
economy.” Id. at 26.
II.
STANDARD OF REVIEW
A district court is limited in its review of the SSA’s
findings
to
determining
whether
those
findings
are
based
on
substantial evidence. 42 U.S.C. § 405(g); Butler v. Barnhart,
353 F.3d 992, 999 (D.C. Cir. 2004); Poulin v. Bowen, 817 F.2d
865,
870
(D.C.
Cir.
1987).
Substantial
evidence
“means
such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion,” Richardson v. Perales, 402 U.S. 389,
401 (1971) (citation omitted), requiring “more than a scintilla,
but ... something less than a preponderance of the evidence.”
Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir.
2010) (citation omitted).
A court must “carefully scrutinize the entire record” but
may not reweigh the evidence or supplant the SSA's judgment of
1
The ALJ specified that “[t]he claimant needs a sit/stand
option; that is, she should not be required to stand for more
than 20/30 minutes before being permitted to sit, or be required
to sit for more than 20/30 minutes before being permitted to
stand.” AR at 24.
-5-
the weight of the evidence with its own.
It must only review
whether the ALJ's findings are based on substantial evidence and
whether the ALJ correctly applied the law. Butler, 353 F.3d at
999; Davis v. Shalala, 862 F.Supp. 1, 4 (D.D.C. 1994); Davis v.
Heckler,
566
F.Supp.
1193,
1195
(D.D.C.
1983).
Finally,
substantial deference should be given to the ALJ's decision, but
the evidence should be read in the light most favorable to the
claimant.
See
Davis,
862
F.Supp.
at
4;
see
also
Simms
v.
Sullivan, 877 F.2d 1047, 1050 (D.C. Cir. 1989) (reviewing court
must determine whether the Commissioner, acting through the ALJ,
"has analyzed all evidence and has sufficiently explained the
weight
he
[or
she]
has
given
to
obviously
probative
exhibits....").
III. ANALYSIS
A.
The ALJ’s Evaluation of Dr. Lumpkins’ Opinion
The
administrative
record
contains
progress
notes
and
opinions from Tanya Lumpkins, M.D., a rheumatologist and one of
Plaintiff’s treating physicians.
Plaintiff argues that the ALJ did not properly evaluate Dr.
Lumpkins’ opinions because he: (1) failed to consider whether
her opinion
discuss
the
was
entitled
proper
to
factors
controlling
for
the
weight;
evaluation
(2)
of
did
not
medical
opinions; and (3) did not evaluate many of the limitations noted
in her January 18, 2008 opinion. Pl.’s Mot. at 6-8. Defendant
-6-
responds that: (1) the ALJ accurately discussed when a treating
physician’s opinion should be afforded controlling weight; (2)
the
ALJ
properly
considered
relevant
regulatory
factors
when
weighing Dr. Lumpkins’ opinion; and (3) to the extent the ALJ
failed
to
properly
evaluate
any
portion
of
Dr.
Lumpkins’
opinion, such error does not warrant remand. Def.’s Mot. at 15,
18-19.
The case law in this Circuit is clear that an ALJ must
accord
substantial
weight
claimant’s
treating
(“Because
a
to
the
physician.
claimant’s
reports
Butler,
treating
and
opinions
353
F.3d
physicians
of
at
have
a
1003
great
familiarity with [her] condition, their reports must be accorded
substantial
weight.”)
(internal
citation
omitted)
(internal
quotation omitted). A treating physician’s report is “binding on
the
fact-finder
unless
contradicted
by
substantial
evidence.”
Id. (internal citation omitted) (internal quotation omitted).
Defendant is correct that the ALJ properly accorded Dr.
Lumpkins’
opinion
significant
weight.
After
discussing
the
regulatory instructions for weighing medical opinions, including
when a treating physician’s opinion is entitled to controlling
weight
(AR
at
19),
the
ALJ
discussed
Dr.
Lumpkins’
medical
opinion and, consistent with the law of this Circuit, accorded
it “significant weight.” AR at 20; see Payne v. Shalala, Civ. A.
No. 93-0288, 1993 WL 405757 at *3 (D.D.C Sept. 24, 1993) (“The
-7-
ALJ was obligated to give significant weight to the opinion of
[] Plaintiff’s treating physician [] so long that opinion was
supported
by
acceptable
laboratory
and
clinical
diagnostic
techniques and was not contradicted by substantial evidence in
the record.”).
Defendant
argument,
the
is
also
ALJ
was
correct
not
that,
required
contrary
to
to
discuss
Plaintiff’s
each
of
the
relevant regulatory factors when deciding what weight to give
Dr. Lumpkins’ opinion. The regulation at issue states that a ALJ
will “consider
weight
[to]
all
give
of
to
the
any
following
medical
factors
in
opinion.”
deciding
20
C.F.R.
the
§
404.1527(d) (emphasis added). Notably, the regulation requires
the ALJ to “consider” certain factors, but does not require the
ALJ to recite and discuss each of the factors in the written
decision.
Plaintiff points to no authority saying that the ALJ
must do so.
However,
properly
Plaintiff
evaluate
is
certain
correct
relevant
that
the
portions
ALJ
of
failed
Dr.
to
Lumpkins
January 18, 2008 opinion. For instance, the ALJ did not discuss,
at any point in the five-step evaluation process, Dr. Lumpkins’
opinion that Plaintiff could not bend, twist or kneel and could
only occasionally move her neck, reach at shoulder level, stand,
walk, and perform repetitive movements. AR at 211. The ALJ was
required to explain why he paid no attention to Dr. Lumpkins’
-8-
opinion on these issues.
Butler, 353 F.3d at 1003 (“We []
require an ALJ who rejects the opinion of a treating physician
[to]
explain
his
[or
her]
reasons
for
doing
so.”
(internal
citation omitted) (internal quotation omitted).
Accordingly, upon remand, the ALJ must explain the weight
he attaches to Dr. Lumpkins’ opinion, and if he disregards any
of her conclusions, he must explain his reasons for doing so.
B.
The ALJ’s Assessment of Plaintiff’s RFC
At step four of the disability determination process, the
Commissioner is required to show that a claimant’s RFC allows
her
to
perform
416.920(f)(1).
other
work.
Assessing
evidence,
which
physical
or
20
RFC
is
may
include
the
mental
demands
of
C.F.R.
based
§§
upon
404.1520(f),
all
relevant
claimant’s
ability
work
observations
and
to
meet
of
limitations by family and friends. 20 C.F.R. § 416.945.
Plaintiff
argues
supported
by
evaluate
medical
that
substantial
the
ALJ’s
evidence
opinions
that
RFC
because
assessment
the
conflicted
ALJ
with
is
not
did
not
his
RFC
assessment. Pl.’s Mot. at 11. Plaintiff further argues that the
ALJ was required “to perform a more detailed assessment of the
Plaintiff’s capacity to perform the mental demands of work.” Id.
at 14 (emphasis in the original). Defendant responds that, to
the extent the ALJ failed to evaluate certain medical opinions,
such error does not warrant reversal or remand. Def.’s Mot. at
-9-
18-19.
Defendant
further
argues
that
“the
ALJ
correctly
evaluated Plaintiff’s mental functioning as the regulations at
20 C.F.R. § 404.1520a direct. That is, [the ALJ] made findings
in
the
four
supported
broad
by
areas
of
substantial
mental
evidence,
functioning
and
that
he
to
to
that
cited
required
were
evidence.” Def.’s Mot. at 16.
An
ALJ’s
discussion
basis
decision
of
“findings
therefor,
discretion
on
evidence
[
on
rationale,
all
presented
557(c)(3)(A)(1988).
regarding
is
and
conclusions,
the
material
on
the
the
“When
the
functions
]
for
statutorily
that
record,
‘[t]he
issues
the
of
record.”
ALJ
the
and
ALJ
fact,
at
some
explain
can
law
U.S.C.
a
must
judiciary
reasons
5
arrives
contradicts
include
or
or
§
conclusion
part
scarcely
a
his
of
the
[or
her]
perform
its
assigned review function ... without some indication ... [as to]
whether
[the]
evidence
was
rejected
rather
than
simply
ignored.’” Ross v. Astrue, 636 F. Supp. 2d 127, 133 (D.C. Cir.
2009)
(citing
Brown
v.
Bowen,
794
F.2d
703,
708
(D.C.
Cir.
1986)). “The ALJ has a duty to explain why [she] either ignored
or rejected contradictory evidence.” Thomas v. Astrue, 677 F.
Supp. 2d
300,
309 (D.D.C.
2010)
(citing
See
v.
Wash.
Metro.
Transit Auth., 36 F.3d 375, 384 (4th Cir. 1994) (“[W]hen faced
with
evidence
in
the
record
contradicting
his
[or
her]
conclusion, an ALJ must affirmatively reject that contradictory
-10-
evidence and explain his rationale for doing so.”) (emphasis
added)).
Plaintiff
evaluate
is
evidence
correct
that
that
the
contradicted
ALJ
his
failed
RFC
to
properly
assessment.
For
instance, the ALJ acknowledged Dr. Cott’s finding that Plaintiff
had experienced one or two episodes of decompensation, each of
extended duration. AR at 19. The ALJ also acknowledged that Dr.
Cott’s assessment was affirmed by Dr. Nachbahr. Id. However, at
step
four
concluded,
of
the
without
disability
determination
explanation,
that
“[t]he
process,
the
ALJ
record
does
not
disclose any episodes of decompensation of extended duration,”
id. at 23, which was directly contrary to the opinions of Dr.
Cott and Dr. Nachbahr. The ALJ’s conclusory determination, with
no explanation as to why he rejected or ignored their opinions
is insufficient.
Similarly, the ALJ failed to explain why he chose not to
consider those portions of Dr. Garmoe’s report that contradicted
the his RFC assessment. More specifically, Dr. Garmoe found that
Plaintiff was severely depressed, discouraged and withdrawn, and
that
persons
with
profiles
such
as
Plaintiff’s
usually
had
marked distress and severe impairment in functioning. AR at 441.
However, the ALJ did not reference this part of Dr. Garmoe’s
report in his RFC assessment, let alone affirmatively reject it
and explain his rationale for doing so.
-11-
In sum, the ALJ failed to properly evaluate evidence that
contradicted his RFC assessment. Therefore, upon remand, the ALJ
must
reconsider
provide
an
the
medical
explanation
testimony
for
in
rejecting
its
any
entirety,
evidence
and
that
contradicts his determination.
C.
The
ALJ’s
Reliance
Vocational Expert
Upon
the
Testimony
of
the
At step five in the disability determination process, if
the claimant is found unable to do any work she has done in the
past because of severe impairment, the ALJ must consider her
RFC, age, education, and work experience to see if she can do
other types of work. 20 C.F.R. § 404.1520(f)(1). If there are
non-exertional limitations in question, the ALJ may rely on the
expertise
of
ascertaining
416.966(e).
a
a
In
vocational
expert
claimant’s
RFC. 2
doing
the
so,
20
ALJ
(“VE”)
C.F.R.
may
pose
to
assist
in
§§
404.1566(e),
a
hypothetical
question to the VE, communicating the claimant’s age, education,
work experience and RFC. If the hypothetical put to the VE is
flawed or contains omissions, it undermines “the foundation for
the expert’s ultimate conclusion that there are alternative jobs
appellant can do.” Simms v. Sullivan, 877 F.2d 1047, 1051 (D.C.
Cir. 1989).
2
“The Secretary must introduce expert vocational testimony to
prove that a significant number of jobs are available for the
claimant.” Smith v. Bowen, 826 F.2d 1120, 1122 (D.C. Cir. 1987).
-12-
Plaintiff
fatally
argues
defective
overlooked
the
that
the
because
ALJ’s
question
the
set
restrictions
ALJ
forth
to
“ignored
by
the
or
Dr.
VE
was
otherwise
Lumpkins,
the
Plaintiff’s treating physician, without explanation.” Pl.’s Mot.
at 17. Plaintiff further argues that the ALJ “failed to properly
address
the
persistence,
Plaintiff’s
or
pace
in
limitations
his
on
hypothetical
concentration,
question
to
the
vocational expert.” Id. at 17-18. Defendant responds that the
ALJ’s step five findings are supported by substantial evidence,
and
that
to
hypothetical
the
extent
posed
to
that
the
there
are
none
of
VE,
any
errors
those
with
errors
the
warrant
remand. Def.’s Mot. at 18-20.
An ALJ who looks to the opinion of a VE at stage five of
the disability determination process “must accurately describe
the claimant’s physical impairment in any question posed to the
expert.”
Butler,
question
to
treating
physician’s
reason
to
the
353
VE
F.3d
must
at
“present
diagnosis
disregard
the
1006.
a
ALJ’s
faithful
unless
physician’s
The
the
hypothetical
summary
ALJ
of
provides
conclusions.”
the
good
Lockard
v.
Apfel, 175 F. Supp. 2d 28, 33 (D.D.C. 2001).
Plaintiff is correct that the ALJ’s hypothetical did not
fully and accurately describe Plaintiff’s impairments. In fact,
Defendant
concedes
hypothetical
that
question
a
the
ALJ
number
-13-
failed
of
the
to
include
in
his
vocationally-relevant
restrictions
opinion. 3
set
See
forth
Def.’s
in
Mot.
Dr.
at
Lumpkins’
18.
January
Despite
this
18,
2008
concession,
Defendant contends that Plaintiff has demonstrated no basis for
remand because, even accepting all of the limitations set forth
by Dr. Lumpkins, Plaintiff would still be capable of performing
the jobs identified by the VE. Defendant’s argument has no merit
because
the
ALJ
“must
accurately
describe”
the
claimant’s
impairments unless he provides good reason for disregarding the
physician’s
added).
conclusions.
The
ALJ
did
Butler,
not
353
F.3d
accurately
at
1006
describe
(emphasis
Plaintiff’s
impairments, nor did he explain why he disregarded Dr. Lumpkins’
opinion.
Furthermore, the ALJ found in his RFC that Plaintiff has
“moderate”
limitations
in
concentration,
persistence
or
pace,
but his hypothetical question to the VE stated that Plaintiff
had
only
“mild”
limitations
in
concentration
persistence
or
pace. See AR at 23, 24, 55.
These deficiencies in the ALJ’s hypothetical undermine the
foundation for the VE’s conclusion. Accordingly, upon remand, if
the
ALJ
elects
to
call
a
VE,
3
the
hypothetical
posed
must
As discussed, supra, Dr. Lumpkins concluded that Plaintiff
could not bend, twist or kneel and could only occasionally move
her neck, reach at shoulder level, stand, walk, and perform
repetitive movements. AR at 211.
-14-
describe
the
Plaintiff’s
impairments
accurately
in
light
of
objective medical testimony.
IV.
CONCLUSION
Upon
consideration
of
the
parties’
cross-motions,
the
administrative record, and the entire record herein, and for the
reasons set forth in this Memorandum Opinion, Plaintiff’s Motion
for Judgment of Reversal is hereby granted in part and denied in
part,
and
Defendant’s
Motion
for
Judgment
of
Affirmance
is
hereby denied.
This
case
is
hereby
remanded
to
the
Commissioner
for
rulings in steps four and five of the disability determination
process. In consideration of these steps, the entire medical
record, including Dr. Lumpkins’ January 18, 2008 opinion, must
be given due regard.
/s/________________________
Gladys Kessler
United States District Judge
August ___, 2012
Copies to: attorneys on record via ECF
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